Legislative Assembly for the ACT: 2003 Week 11 Hansard (22 October) . . Page.. 3965 ..
MR STANHOPE (continuing):
Mr Stefaniak's bill confounds the role of the judiciary to distinguish between offenders who are armed, offenders who carry instruments for crime, or offenders who simply carry everyday personal possessions. It would be the court's role to test and determine whether an object was intended to be used as a weapon. Even a cursory look at the number of cases before the court would reveal the enormous impact this type of blanket dictate would have on our justice system. In relation to theft alone, Mr Stefaniak's bill has the potential of increasing the population of the remand centre by almost 12 times, or 1,193 per cent.
In contrast to Mr Stefaniak's bill, the government is creating a presumption against bail for murder, attempted murder and accessory to murder; creating a presumption against bail for drug trafficking offences that relate to organised crime; removing any presumption for or against bail in relation to other serious offences identified by the government, thus allowing the courts to hear each and every case on its merits; and expanding the criteria to be considered in bail decisions and to provide additional guidance to bail decision makers.
The government is also retaining provisions in the Bail Act which requires courts or authorised officers to consider any known concerns expressed by a victim about the need for protection from violence or harassment; ensuring that the interests of a child remain of primary consideration when decision makers are determining bail for a child or young person; and ensuring that bail decision makers have clear guidance within the legislation about the factors the community considers important in deciding whether to grant bail.
It is the view of the government that Mr Stefaniak's bill does not, in the end, solve anything at all. The government is modernising our bail system, upholding a just system, and meeting the community's expectations, and it is doing that in a considered and broad way. The government has not, as Mr Stefaniak has done, picked out a single issue, a single provision, and in a broad brush way created a whole range of consequences that at the end of the day would cause absolute confusion to and difficulty for police, the courts and the DPP, and seriously undermine those notions particularly in relation to indictable offences and what does or does not constitute an offensive weapon.
Mr Stefaniak is intent on simply ratcheting the implications of the broad brush, general definition of "offensive weapon"out of the Crimes Act and placing it into the Bail Act. Law making is not as simple as that. Moving or simply transferring the definition of "offensive weapons"from the Crimes Act to the Bail Act would have a most radical knock-on effect in relation to the implications for the granting or not granting of bail. We would end up with a circumstance where almost not a single person coming before the court in relation to a property offence, carrying a mobile phone or some other item of personal apparel, would necessarily be granted bail or the presumption in favour of bail if Mr Stefaniak's bill were successful. The government will oppose the bill.
MS TUCKER (5.54): The Greens will not be supporting this bill in principle as the overall approach and the overall changes are not in line with the balanced approach to bail in which we believe, although I have some sympathy for at least considering the part of the bill creating a presumption against bail for the offence of murder. This comes from the Law Reform Commission's recommendations.